CORAM
MOHAMMED BELLO, JUSTICE SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
MOHAMMED BELLO, JUSTICE SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
MOHAMMED BELLO, JUSTICE SUPREME COURT
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
SALIHU MOOIBBO ALFA BELGORE, JUSTICE, SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
SALIHU MOOIBBO ALFA BELGORE, JUSTICE, SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
SALIHU MOOIBBO ALFA BELGORE, JUSTICE, SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
SALIHU MOOIBBO ALFA BELGORE, JUSTICE, SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
KUDIRAT M.O. KEKERE-EKUN, JUSTICE, COURT OF APPEAL
MOHAMMED BELLO, JUSTICE SUPREME COURT
MOHAMMED BELLO, JUSTICE SUPREME COURT
PARTIES
BULAMA KOLOMI APPELLANTS
1. MALAM SAMAILA 2. GONI ALI RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Upper Sharia Court No. 11 Maiduguri entered judgment against the Appellant on 23rd June, 2009. The Appellant alleges that he was unaware of the date the judgment was delivered, as he had appealed and applied for the record of proceedings on 28th May 2009, and 27th May 2009 respectively which record was not ready until March 2011. Upon receipt of the record, the Appellant approached the registry of the Court for date for hearing only to be told the appeal had been struck out since July 2009. An application for re-listment brought by the Appellant before the Upper Sharia Court No 11 Maiduguri; was refused whereupon the Appellant appealed to the High Court of Borno State sitting in its appellate jurisdiction. The High Court refused the Appellant’s application for extension of time within which to appeal against the ruling of the Upper Sharia Court No 11 Maiduguri. Dissatisfied with the decision of the lower Court, the Appellant by an order of this Court filed his Notice and Grounds of Appeal. At the hearing of the appeal, the Registrar informed the Court to its satisfaction that the Respondents were severally personally served with the day’s Hearing Notice on 30th May, 2017 and the Court also noted that it has granted the Appellant leave for the appeal to be heard on the Appellant’s brief alone. As there being no reason for the absence of the Respondents, the appeal was heard with the Appellant urging the Court to allow the appeal by setting aside of the Ruling of the Lower Court. The Respondents did not file any brief. Judgment was thereafter reserved.
HELD
Appeal Allowed
ISSUES
Whether with the facts and circumstances of this case, the Appellant has satisfied the conditions precedent for the grant of an application of this nature.
RATIONES DECIDENDI
EXTENSION OF TIME TO APPEAL – EXERCISE OF THE DISCRETIONARY POWERS OF THE COURT IN GRANTING AN APPLICATION FOR EXTENTION OF TIME TO APPEAL
“The grant of an application for extension of time to appeal is within the discretion of the Court before which the application is brought. Once the Court considers the rules governing the grant of such application before arriving at his decision, the discretion is adjudged properly exercised. In Re: Apeh & Ors. V. PDP & Ors (2017) LPELR. SC. 428/2015 (R2); Ngere V. Okuruket XIV (2014) 11 NWLR (PT. 1417) 175. Order 7 Rule 10 (2) of the Court of Appeal Rules, 2011 provides:
“Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard…
–
EXTENSION OF TIME TO APPEAL – CONDITIONS FOR THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL
“By Order 7 Rule 10 (2) of the Court of Appeal Rules 2011, the Applicant must successfully through his affidavit evidence satisfy conjunctively the two conditions set out below as laid down in the referred Order.
(a). Good and substantial reasons for failure to appeal within the period prescribed by the appropriate rule of Court and
(b). Grounds of Appeal which prima facie show good cause why the appeal should be heard.
See: Minister P.M.R V. Expo Shipping Line (Nig) Ltd. (2010) 12 NWLR (PT. 1208) 261; Ngere V. Okuruket XIV (2014) 11 NWLR (PT. 1417) 147; Anachebe V. Ijeoma (2014) 14 NWLR (PT. 1426) 168; Yesufu V. Co-Operative Bank Ltd. (1989) 3 NWLR (PT. 110) 483. In an application for extension of time within which to appeal such as this, the length of delay in filing the application cannot solely be a ground to refuse the grant of the application if the Applicant proffers good and substantial reasons to absolve the delay. See: Union Bank Of Nigeria Plc V. Alhaji Mohammed Ndace (1998) 3 NWLR (PT. 541) 331; Bank Of The North Ltd. V. Ismaila Yusuf Obansa (2010) LPELR 3852 (CA). On this therefore, the Applicant must depose to material facts which are satisfactorily logical and weighty to sway the mind of the Court to grant the application. On the second twin condition for the grant of an application for extension of time within which to appeal, which is that the Grounds of Appeal must prima facie show good cause why the appeal must be heard. The Applicant only needs to show that the Grounds of Appeal are arguable and not frivolous, and does not need to show that the Grounds of Appeal are such that the appeal will at all events succeed. See: Yesufu V. Cooperative Bank (supra). This condition requires the Court to assess the persuasiveness of the Ground of Appeal in relation to the judgment or ruling sought to be appealed against. See Lauwers Import-Export V. Jozebson Industries Ltd. (1988) 3 NWLR (PT. 83) 429; Blue-Chip Acquisition And Investment Co. Ltd. V. Zenith Bank Plc. & Ors. (2008) LPELR – 8529 (CA). In Anachebe V. Ijeoma (2014) 14 NWLR (PT. 1426) 168 RATIO 4-6 at 185 PARAS D- F AND 187 PARAS C-E; the apex Court had this to say:
“… In an application for extension of time to appeal, where the grounds of appeal raise substantial and arguable issues of jurisdiction same ought to be granted because jurisdiction is the life wire of any adjudication. ….when in an application for extension of time within which to appeal, a proposed ground of appeal complains about lack of jurisdiction, and it prima facie appears so, it may not be necessary to inquire whether there are good and substantial grounds for failure to appeal within the prescribed time. In other words. a complaint of absence of jurisdiction is sufficient, good and substantial reason why an appeal should be heard…”
See also: Ngere V. Okuruket XIV (2014) 11 NWLR (PT. 1417) 147; E.F.P. CO. LTD. V. N.D.I.C (2007) 9 NWLR (PT. 1039) 216; Nuhu V. Ogele (2003) 18 NWLR (PT. 852) 251; Ukwu V. Bunge (1997) 8 NWLR (PT. 518) 527. –
SERVICE OF COURT PROCESS – IMPORTANCE OF SERVICE OF PROCESS
“Service of process is a condition sine qua non to the hearing of any suit for the principle of audi alteram partem to have meaning. Okoroafor Mbadinuju & Ors V. Chukwunuyere Ezuka & Ors. (1994) LPELR – 1851 (SC). Except for ex parte proceedings, in our legal system an order cannot validly be made against a man who has had no notification of the proceedings wherein the order was made. Scott-Emuakpor V. Ukavbe (1975) NSCC 435, 439. Where notice of any proceeding is required, failure to notify any party is a fundamental omission which entitles the party not served and against whom any order is made in his absence to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction for the making of the order has not been fulfilled see Marion Obimonure V. Ojumoola Erinosho And Anor (1966) 1 ALL NLR 250. –
APPEAL ON JURISDICTION – EFFECT OF AN APPEAL BROUGHT ON GROUND OF JURISDICTION
“The law is settled that when an appeal is on Ground of jurisdiction, it doubles as both substantial and good reason why an application for extension of time to appeal should be granted; and an arguable Ground of appeal because of the indispensability of jurisdiction by the Court in any of its proceedings”. –
EXTENSION OF TIME TO APPEAL – WHETHER AN APPLICATION FOR EXTENSION OF TIME TO APPEAL CAN BE REFUSED ON GROUNDS OF DELAY WHEN SUCH DELAY CAN ADEQUATELY BE EXPLAINED
“The lower Court did not consider this Ground and the fact that the law is settled that delay alone under appropriate circumstances cannot be the reason to refuse an application for extension of time to appeal when the delay can adequately be explained”. –
BRIEF OF ARGUMENT- WHETHER THE COURT IS OBLIGATED TO ACCEPT THE ARGUMENT OF THE APPELLANT UPON THE FAILURE OF THE RESPONDENT TO FILE ITS BRIEF OF ARGUMENTS
“It must be noted that the appeal was heard only on the Appellant’s brief of arguments, following the failure of the Respondents to file a brief of arguments. This does not, however, translate to the fact that this Court must accept the arguments of the Counsel to the Appellants as gospel truth. This is because the address of Counsel is not binding on the Court. The Court must still assess the arguments – Oruboko Vs Oruene (1996) 7 NWLR (Pt 462) 555, Eya Vs Olopade (2011) 11 NWLR (Pt 1259) 505 and Independent National Electoral Commission Vs Nyako (2011) 12 NWLR (Pt 1262) 439”. –
EXERCISE OF DISCRETION – WHETHER AN APPELLATE COURT CAN INTERFERE WITH A LOWER COURT’S EXERCISE OF DISCRETION
“The application for extension of time to appeal filed before the lower Court was an appeal to the discretionary jurisdiction of the lower Court – Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt 1324) 505. This appeal is thus against the exercise of discretion by the lower Court. It is settled that an appellate Court will not interfere with the decision of a lower Court on exercise of discretion simply because if faced with a similar application it would have exercised the discretion differently. It is the duty of an appellant who appeals against the exercise of discretion by a lower Court to satisfy the appellate Court that the lower Court did not exercise its discretion judicially and judiciously. It is not for the appellant to repeat the same argument presented before the appellate Court in the hope that it would exercise its discretion differently – Lauwers Import-Export Vs Jozebson Industries Ltd (1988) 3 NWLR (Pt 83) 429. The Minister of Petroleum and Mineral Resources Vs Expo Shipping Line (Nig) Ltd (2010) 12 NWLR (Pt 1208) 26, Lafferi (Nig.) Ltd Vs NAL Merchant Bank Plc (2015) 15 NWLR (Pt 1418) 64”. –
EXERCISE OF DISCRETION – INSTANCE WHEN A TRIAL COURT WOULD BE HELD TO HAVE FAILED TO EXERCISE ITS DISCRETION JUDICIALLY AND JUDICIOUSLY
“A trial Court will be held to have failed to exercise its discretion judicially and judiciously where the decision reached is perverse such as where it does not conform with the facts placed before the Court and thereby occasioned a miscarriage of justice – Awoyale Vs Ogunbiyi(1985) 2 NWLR (pt 10) 861 Midland Galvanizing Product Ltd Vs Ogun State Internal Revenue Service (2015) 8 NWLR (Pt 1460) 29, Ahmed Vs Susu Microfinance Bank Ltd (2015) 13 NWLR (Pt 1476) 403. –
EXTENSION OF TIME TO APPEAL – REQUIREMENT FOR THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
“The Courts have stated over the years that where the extension of time sought is to appeal, the materials to be supplied by the applicant must show (i) good and substantial reasons for the failure to appeal within the prescribed period; and (ii) grounds of appeal which prima facie show good cause why the appeal should be heard. Both conditions must co-exist and the Court entertaining the application must be satisfied on these two requirements before granting the application – Kotoye Vs Saraki (1995) 5 NWLR (Pt 395) 256, Nigerian Airports Authority Vs Okoro (1995) 6 NWLR (Pt 403) 510, Federal Housing Authority VsAbosede(1998) 2 NWLR (Pt 537) 177, Williams VsMokwe (2005) 14 NWLR (Pt 945) 249, Federal Housing Authority VsKalejaiye (2010) 19 NWLR (Pt 1226) 147, OlatubosunVs Texaco (Nig) Plc (2012) 14 NWLR (Pt 1319) 200, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd supra. –
EXTENSION OF TIME TO APPEAL- EXCEPTION TO THE RULE ON THE REQUIREMENT FOR THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
“The only exception to the conjunctive satisfaction of the two requirements is where the proposed grounds of appeal raise genuine questions of jurisdiction of the lower Court to entertain the matter. The law is that the reasons for the delay in filing the application pales into insignificance where the proposed ground of appeal complains of lack of jurisdiction and it prima facie appears so. The law takes the position that it is never too late to appeal against a judgment given without jurisdiction – Lauwers Import-Export VsJozebson Industries Ltd (1988) 3 NWLR (Pt 83) 429, UkwuVs Bunge (1997) 8 NWLR (Pt 518) 527, NworaVs Nwabueze (2011) 15 NWLR (Pt 1271) 467. In looking at the first condition, it must be understood, as stated by the Supreme Court in Enyibros Foods Processing Company Ltd Vs Nigerian Deposit Insurance Corporation (2007) 9 NWLR (Pt 1039) 216, that there are two instances of delay involved in an application for extension of time to appeal which must be explained and these are (i) the reason why the applicant could not appeal within the time statutorily allowed to appeal; and (ii) the reason why the application was not filed earlier than the time it was filed after the time statutorily allowed for the applicant to appeal. It must also be understood that in an application for extension of time to appeal, the length of the delay is irrelevant so long as the applicant proffers good and substantial reasons for the delay, and there must not be unexplained gaps in the period of the delay for which no plausible reason is adduced – The Minister of Petroleum and Mineral Resources Vs Expo Shipping Line (Nig) Ltd (2010) 12 NWLR (Pt 1208) 261, United Bank for Africa Plc VsAdikwu (2015) 1 NWLR (Pt 1439) 27, Midland Galvanising Product Ltd Vs Ogun State Internal Revenue Service (2015) 8 NWLR (Pt 1460) 29. –
SERVICE OF HEARING NOTICE – IMPORTANCE OF SERVICE OF HEARING NOTICE
“The law is that the proposed grounds of appeal must be substantial and arguable, and not be frivolous; the grounds must exhibit good and reasonable prospects of success of the appeal – Ikenta Best (Nig) Ltd Vs Attorney General, Rivers State (2008) 2 SCNJ 152, Enyibros Foods Processing Company Ltd Vs Nigerian Deposit Insurance Corporation supra and Chukwu Vs Omehia (2012) LPELR-9344(SC). Reading through the grounds of appeal on the proposed notice of appeal, the first ground appeal raised the issue of non-service of hearing notice. It is settled law that service of hearing notice as a process of the Court is a fundamental requirement in our adversary system of adjudication. It is more than just a procedural step in the adjudication of a matter. It is a substantive issue as it goes to the jurisdiction and competence of the Court to go ahead with the matter – Nasco Management Service Vs Amaku Transport Ltd (2003) 2 NWLR (Pt 804) 290, Otobaimere Vs Akporehe (2004) 14 NWLR (Pt. 894) 591. The grounds of appeal thus raised the issue of jurisdiction which was, on its own, sufficient reason to grant the application for extension of time to appeal”. –
CASES CITED
Not Available
STATUTES REFERRED TO